National Treasury Employees Union (Union) and Department of the Treasury, Internal Revenue Service (Agency)

[ v08 p136 ] 08:0136(27)NG
The decision of the Authority follows:

8 FLRA No. 27
NATIONAL TREASURY EMPLOYEES UNION
Union
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
Agency
Case No. 0-NG-332
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
THE ISSUE PRESENTED IS THE NEGOTIABILITY OF TWELVE UNION PROPOSALS,
WHICH CONCERN THE ADVICE TO BE GIVEN TO EMPLOYEES PRIOR TO AN
INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST
THEM. THE TEXT OF UNION PROPOSALS 1 THROUGH 12 IS SET FORTH IN THE
APPENDIX. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
THE PARTIES CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.
CONTRARY TO THE AGENCY'S ALLEGATION, THE AUTHORITY CONCLUDES THAT THE
PROPOSALS ARE WITHIN THE DUTY TO BARGAIN. /1/ IN THIS REGARD, THE
PROPOSALS RELATE TO THE MANNER IN WHICH EMPLOYEES ARE TO BE NOTIFIED BY
INSPECTORS OF CERTAIN PROCEDURES, PRIVILEGES, AND OBLIGATIONS IN
RELATION TO AN INTERROGATION WHICH COULD LEAD TO DISCIPLINARY ACTION.
AS SUCH, CONTRARY TO THE AGENCY'S ASSERTION, THE PROPOSALS DIRECTLY
RELATE TO CONDITIONS OF EMPLOYMENT AFFECTING BARGAINING UNIT EMPLOYEES.
SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE, 3
FLRA 692(1980).
THE AGENCY HAS ALSO ASSERTED WITHOUT PROVIDING ANY SPECIFIC SUPPORT
THAT THE UNION'S PROPOSALS WOULD INTERFERE WITH ITS RIGHT UNDER SECTION
7106(A)(1) OF THE STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
/2/ HOWEVER, AS IT PROVIDES NO SPECIFIC SUPPORT FOR THIS ALLEGATION AND
NONE IS OTHERWISE APPARENT, THE AUTHORITY CONCLUDES THAT THE PROPOSALS
IN THIS CASE DO NOT INTERFERE WITH THE AGENCY'S DETERMINATION WHETHER TO
INTERVIEW A PARTICULAR EMPLOYEE IN CONNECTION WITH ITS INTERNAL
SECURITY. NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 61 AND
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, ALBANY DISTRICT,
NEW YORK, 7 FLRA NO. 47(1981) AT 3. SIGNIFICANTLY, THE AGENCY DOES NOT
ARGUE THAT ANY OF THE PARTICULAR PROCEDURES SET FORTH IN THE PROPOSALS
ARE PROHIBITED BY LAW, NOR DOES IT APPEAR THAT THE PROPOSALS WOULD
SPECIFY SUBSTANTIVE CRITERIA PURSUANT TO WHICH MANAGEMENT MUST DETERMINE
ITS INTERNAL SECURITY PRACTICES. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, 2 FLRA 603(1980), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.ED 1140,
1152(D.C.CIR. 1981). RATHER, THE PROPOSALS CONSTITUTE PROCEDURES UNDER
SECTION 7106(B)(2) OF THE STATUTE /3/ TO ENSURE THAT AN EMPLOYEE WHO IS
ABOUT TO BE INTERROGATED IS NOTIFIED OF THE CIRCUMSTANCES UNDER WHICH
QUESTIONING WILL OCCUR. COMPARE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 15 AND DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, NORTH ATLANTIC REGION, 2 FLRA 874(1980).
FINALLY, THE AGENCY ASSERTS THAT AN ATTORNEY GENERAL'S MEMORANDUM
DATED JUNE 4, 1980, IS A BAR TO NEGOTIATION; HOWEVER, IT DOES NOT
ADVERT TO ANY INCONSISTENCY BETWEEN THE UNION'S PROPOSALS AND THE
MEMORANDUM, NOR DOES IT APPEAR THAT ANY SUCH INCONSISTENCY EXISTS.
ACCORDINGLY, WITHOUT REACHING THE QUESTION OF WHETHER THAT MEMORANDUM IN
FACT CONSTITUTES A GOVERNMENT-WIDE RULE OR REGULATION, THE MEMORANDUM
CANNOT SERVE AS A BAR TO NEGOTIATIONS. SEE SECTION 7117(A)(1) OF THE
STATUTE; LONG BEACH NAVAL SHIPYARD, LONG BEACH CALIFORNIA AND
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
174, AFL-CIO, 7 FLRA NO. 53(1981) AT 6.
ACCORDINGLY, THE UNION'S PROPOSALS MUST BE FOUND TO BE WITHIN THE
DUTY TO BARGAIN. THEREFORE, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING UNION PROPOSALS 1 THROUGH 12.
ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
UNION PROPOSAL I
633.2(3): STRIKE IN TOTO.
ADD:
ANY EMPLOYEE WHO REASONBL(Y) BELIEVES THAT AN INTERVIEW MAY RESULT IN
DISCIPLINARY ACTION HAS THE RIGHT TO REPRESENTATION BY A PERSON
DESIGNATED BY THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION FOR THE UNIT
IS WHICH HE/SHE WORKS. BEFORE BEGINNING ANY INTERVIEW THE EMPLOYEE WILL
BE ADVISED AS FOLLOWS:
THIS IS AN INTERVIEW BY INSPECTIONS CONCERNING . . . (A BRIEF
DESCRIPTION OF THE SUBJECT OF
THE INTERVIEW AND INVESTIGATION) . . . ; PURSUANT TO THE PROVISIONS
OF SEC. 7114(A)(2)(B)(3)
OF THE CIVIL SERVICE REFORM ACT OF 1978 YOU HAVE THE RIGHT TO BE
REPRESENTED DURING THIS
INTERVIEW BY A PERSON DESIGNATED BY THE EXCLUSIVELY RECOGNIZED LABOR
ORGANIZATION FOR THE UNIT
IN WHICH YOU WORK, IF THE (SIC) REASONABLY BELIEVE THAT THE RESULTS
OF THIS INTERVIEW MAY
RESULT IN DISCIPLINARY ACTION AND YOU REQUEST REPRESENTATION. DO YOU
WISH TO BE SO
REPRESENTED?
IF THE EMPLOYEE REQUESTS SUCH REPRESENTATION, THE UNION
REPRESENTATIVE WILL BE ALLOWED AS PROVIDED IN (1) ABOVE.
UNION PROPOSAL 2
632.32(3): AMEND LAST SENTENCE TO READ:
THE INSPECTOR IS REQUIRED TO ADVISE THE EMPLOYEE OF THE RIGHT TO
UNION REPRESENTATION PURSUANT TO 633.2(3) ABOVE.
UNION PROPOSAL 3
ADD AS 634.32(5):
THE INSPECTOR IS REQUIRED TO ADVISE THE EMPLOYEE OF HIS/HER RIGHT TO
REMAIN SILENT AND COUNSEL AND UNION REPRESENTATION BOTH ORALLY AND IN
WRITING SO THAT THE EMPLOYEE MAY CHOOSE TO EXERCISE EITHER RIGHT TO
COUNSEL AND/OR UNION REPRESENTATION; THEN THE INSPECTOR WILL REPEAT THE
ADVISING OF RIGHTS IN THE PRESENCE OF COUNSEL AND/OR UNION
REPRESENTATIVE UPON THE RECOMMENCEMENT OF THE INTERVIEW BOTH ORALLY AND
IN WRITING.
UNION PROPOSAL 4
634.33(4): ADD FOLLOWING SENTENCE:
THE SUBJECT OF THE INVESTIGATION WILL BE ADVISED THAT NO
ATTORNEY-CLIENT PRIVILEGE EXISTS BETWEEN AN EMPLOYEE AND A UNION
REPRESENTATIVE WHO IS NOT AN ATTORNEY BEFORE QUESTIONING BEGINS. THE
EMPLOYEE AT THAT TIME MAY WISH TO WAIVE NON-ATTORNEY REPRESENTATION.
UNION PROPOSAL 5
634.5(2): AMEND AS FOLLOWS:
WHEN PROSECUTION IS DECLINED, THE CASE INSPECTOR SHALL REQUEST THE
PROSECUTING OFFICIAL TO AUTHORIZE THE IRS TO PROCEED ADMINISTRATIVELY
AGAINST THE EMPLOYEE AS PROVIDED FOR UNDER 18 U.S.C. 6001,ET SEQ.
UNION PROPOSAL 6
634.5(3): AMEND AS FOLLOWS:
PRIOR TO QUESTIONING THE EMPLOYEE, THE CASE INSPECTOR SHALL PROVIDE
THE EMPLOYEE WITH A COPY OF THE ORDER OBTAINED PURSUANT TO 18 U.S.C.
6001,ET SEQ AND ADVISE THE EMPLOYEE AS FOLLOWS:
"YOU ARE HERE TO BE ASKED QUESTIONS PERTAINING TO YOUR EMPLOYMENT
WITH THE INTERNAL REVENUE
SERVICE AND THE DUTIES THAT YOU PERFORM FOR THE IRS. YOU HAVE THE
OPTION TO REMAIN SILENT,
ALTHOUGH YOU MAY BE SUBJECT TO REMOVAL FROM YOUR EMPLOYMENT BY THE
SERVICE IF YOU FAIL TO
ANSWER MATERIAL AND RELEVANT QUESTIONS RELATING TO THE PERFORMANCE OF
YOUR DUTIES AS AN
EMPLOYEE. YOU ARE FURTHER ADVISED THAT THE ANSWERS YOU MAY GIVE TO
THE QUESTIONS PROPOUNDED
TO YOU AT THIS INTERVIEW, OR ANY INFORMATION OR EVIDENCE WHICH IS
GAINED BY REASON OF YOUR
ANSWERS, MAY NOT BE USED AGAINST YOU IN A CRIMINAL PROCESSING (SIC)
EXCEPT THAT YOU MAY BE
SUBJECT TO A CRIMINAL PROSECUTION FOR ANY FALSE ANSWER THAT YOU MAY
GIVE. YOUR ASSURANCE THAT
YOU WILL NOT BE PROSECUTED IS THE IMMUNITY ORDER WHICH I HAVE GIVEN
TO YOU."
UNION PROPOSAL 7
634.5(4): AMEND AS FOLLOWS:
THE ABOVE REQUIRED ADMONITION EVOLVED FROM A LINE OF COURT DECISIONS
WHICH ESTABLISH, IN EFFECT THAT WHEN AN AGENCY HAS A RULE OF CONDUCT
REQUIRING AN EMPLOYEE TO RESPOND TO QUESTIONS IN MATTERS OF OFFICIAL
INTEREST, THE AGENCY CANNOT TAKE DISCIPLINARY ACTION AGAINST THE
EMPLOYEE FOR REFUSING TO ANSWER QUESTIONS UNLESS THAT EMPLOYEE HAS BEEN
ASSURED THAT HIS/HER ANSWERS WILL NOT BE USED AGAINST HIM/HER IN A
CRIMINAL PROSECUTION BY OPERATION OF 18 U.S.C. 6001,ET SEQ.
UNION PROPOSAL 8
634.5(5): ADD
IN ADDITION, A COPY OF THE ORDER OBTAINED PURSUANT TO 18 U.S.C.
6001,ET SEQ SHALL BE SERVED UPON THE EMPLOYEE BEFORE QUESTIONING BEGINS.
UNION PROPOSAL 9
634.5(6): ADD
THE EMPLOYEE MAY AT THAT TIME EXERCISE HIS/HER CONSTITUTIONAL RIGHT
TO SILENCE AND THE INTERVIEW WILL TERMINATE. HOWEVER, IF THE EMPLOYEE
IS COVERED BY AN ORDER OBTAINED PURSUANT TO 18 U.S.C. 6001,ET SEQ THEN
HE/SHE HAS NO RIGHT TO SILENCE AND SHALL BE SO ADVISED. THE INTERVIEW
SHOULD CONTINUE.
UNION PROPOSAL 10
634.6(1): ADD
FURTHER, THE EMPLOYEE WHO REFUSES TO RESPOND OR SHOWS ANY RELUCTANCE
TO RESPOND IN A NON-CRIMINAL CONDUCT TYPE CASE SHALL BE ADVISED ORALLY
AND IN WRITING:
"YOU ARE HERE TO BE ASKED QUESTIONS PERTAINING TO YOUR EMPLOYMENT
WITH THE INTERNAL REVENUE
SERVICE AND THE DUTIES THAT YOU PERFORM FOR THE IRS. YOU HAVE THE
OPTION TO REMAIN SILENT,
ALTHOUGH YOU MAY BE SUBJECT TO REMOVAL FROM YOUR EMPLOYMENT BY THE
SERVICE IF YOU FAIL TO
ANSWER MATERIAL AND RELEVANT QUESTIONS RELATING TO THE PERFORMANCE OF
YOUR DUTIES AS AN
EMPLOYEE. YOU ARE FURTHER ADVISED THAT THE ANSWERS YOU MAY GIVE TO
THE QUESTIONS PROPOUNDED
TO YOU AT THIS INTERVIEW, OR ANY INFORMATION OR EVIDENCE WHICH IS
GAINED BY REASON OF YOUR
ANSWERS, MAY NOT BE USED AGAINST YOU IN A CRIMINAL PROCEEDING EXCEPT
THAT YOU MAY BE SUBJECT
TO A CRIMINAL PROSECUTION FOR ANY FALSE ANSWER THAT YOU MAY GIVE."
(SEE DOCUMENT 5280.)
UNION PROPOSAL 11
634.6(3): STRIKE IN-TOTO
ADD A SEPARATE SECTION TO BE NUMBERED ACCORDINGLY AS FOLLOWS:
REFUSAL TO ANSWER QUESTIONS BASED UPON LACK OF RELEVANCY AND/OR
MATERIALITY TO THE PERFORMANCE OF DUTY.
(1.) AN EMPLOYEE MAY REFUSE TO ANSWER QUESTIONS WHICH ARE NOT
RELEVANT OR MATERIAL TO THE
PERFORMANCE OF HIS/HER DUTY. SUCH QUESTIONS WILL BE WITHDRAWN WHEN
ASKED AS WELL AS AVOIDED
AT ALL COST.
(2.) IF AN EMPLOYEE REFUSES TO ANSWER FOR THIS REASON AND THE
INSPECTOR DISAGREES WITH THE
EMPLOYEE'S (SIC) CONCLUSIONS CONCERNING THE MATERIALITY OR RELEVANCE
OF A QUESTION, THE
QUESTION WILL BE WRITTEN DOWN BY INSPECTIONS AND THE EMPLOYEE WILL BE
GIVEN A REASONABLE TIME
TO RESPOND IN WRITING AT A LATER DATE.
(3.) A BARGAINING UNIT EMPLOYEE WILL ALSO HAVE THE RIGHT TO GRIEVE
THE QUESTION ON THE
GROUNDS OF MATERIALITY AND RELEVANCE THROUGH THE NEGOTIATED GRIEVANCE
PROCEDURE. IF THE
EMPLOYER'S POSITION CONCERNING THE QUESTION IS SUSTAINED ANY
ANSWER(S) OBTAINED PURSUANT TO
(2) ABOVE SHALL BE PERMANENTLY SUPPRESSED AND
EXPUNGED FROM ALL IRS FILES AND/OR RECORDS.
UNION PROPOSAL 12
635: AMEND AS FOLLOWS:
(1) WHEN THE PERSON BEING INTERVIEWED IS ACCOMPANIED BY A
REPRESENTATIVE FURNISHED BY THE
EMPLOYEE'S LABOR ORGANIZATION, IN BOTH CRIMINAL AND NON-CRIMINAL
CASES, THE REPRESENTATIVE
MUST BE ADVISED AT THE OUTSET OF THE INTERVIEW THAT HIS/HER FUNCTION
IS STRICTLY LIMITED TO
GIVING ADVICE TO THE EMPLOYEE BEING INTERVIEWED. IF THE
REPRESENTATIVE REFUSES TO ABIDE BY
SUCH LIMITATIONS, THE INTERVIEW MUST BE RECESSED; THE GROUP MANAGER,
OR OTHER INSPECTION
OFFICIAL MUST BE CONTACTED FOR A DECISION AS TO WHETHER THE INTERVIEW
SHOULD BE RESUMED OR
TERMINATED.
(2) WHEN THE PERSON BEING INTERVIEWED IS REPRESENTED BY COUNSEL AND
INSPECTIONS IS ON
REASONABLE NOTICE OF SUCH REPRESENTATION, THE EMPLOYEES COUNSEL SHALL
HAVE FULL AUTHORITY TO
REPRESENT THE EMPLOYEE FOR ALL PURPOSES. CASE INSPECTORS ON
REASONABLE NOTICE OF SUCH
REPRESENTATION SHALL AVOID EX PARTE COMMUNICATION WITH THE EMPLOYEE
(SIC) CASE INSPECTORS
SHALL CONTACT THE EMPLOYEE'S COUNSEL TO ARRANGE ANY INTERVIEW OR
OTHER CONTACT.
(3) INTERVIEWS MAY BE RECORDED AT THE EMPLOYEES DISCRETION.
--------------- FOOTNOTES: ---------------
/1/ IN DECIDING THAT THE PROPOSALS ARE WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS THEREOF.
/2/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY
(.)
/3/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION (.)